Graham, Lynn v Commissioner for Superannuation

[1981] FCA 102

CATCHWORDS

Administrative Decisions (Judicial Review) Act l977 -

Request for Payment of Maintenance Arrears out o f Husband's

Superannuation Entitlement - Decision o f Commissioner of

Superannuation That no Power - Question o f Law - Meaning o f

Decision - Discretion to Decline Jurisdiction under s.lO(2)

Secns 3(1)	5 and 10 Administrative Decisions (Judicial Review)
Act 1977

Secns 118, 119 Superannuation Act 1976

Regn 134(4) (b ) Family Law Regulations 1975

0.54, r.4 Federal Court Rules

LYNN GRAHAM v COMMISSIONER FORSUPERANNUATION

No. ACT G7 of 1981

Coram: Fox ACJ

23rd June, 1981

Canberra

IN THE FEDERAL COURT OF AUSTRALIA )

'I

AUSTRALIAN	CAPITAL	TERRITORY	j
) No. ACT G7 of 1981

DISTRICT REGISTRY	1
GENERAL DIVISION

LYNN GRAHAM

Applicant

COMMISSIONER FOR SUPERANNUATION

Respondent

Coram: Fox ACJ

23rd June, 1981

Canberra

This is an application under the Administrative

Decisions (Judicial Review) Act 1977.

The applicant relies upon s .5 of that Act. There

has been a challenge to the competency of the application

filed on behalf of the respondent Commissioner for Superannuation

The notice of objection to competency relies upon three

matters, namely that there was not a decision, that it was not

o f an administrative character, and that it was not made under

an enactment. Counsel for the Commissioner has told me that

he does not rely upon the last two of these grounds, s o that

the objection to competency only	goes to the question whether
there was a decision.

The applicant obtained a decree nlsl for dissolutlon

o f her marriage on 8 April 1980. On 8 October of that year a

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judge sitting in the Family Court at Canberra ordered inter alia that her former husband pay maintenance for the support

of two children of the marriage in the sum of $ 2 0 per week

each. It was ordered that the payments were to be made to the

Collector of Maintenance at Canberra for payment out to the applicant wife.

The applicant has deposed that she has not received

maintenance from her former husband. She asked the Collector

of Maintenance for the Australian Capital Territory to take

enforcement action. This was apparently not possible, or at

least if possible, was not successful. The Collector of

Maintenance issued a Certificate of Arrears dated 12 January

1 9 8 1 which showed that nothing had been paid by the former

husband by way o f maintenance on o r before 7 January 1 9 8 1 , and

that on that date an amount	of $ 5 2 0 was due under the order and
was unpaid.

The applicant became aware that her husband was

proposing to resign from the Public Service and she took actlon

to garqishee superannuation moneys falling due to him. An

order was made by a magistrate purporting to be pursuant to

regn. 134(4)(b) of the regulations under the Family Law Act

1 9 7 5 . He ordered that the Commissioner for Superannuation pay

any moneys held by him to which the respondent husband was

entitled by way of pension, or refunds of payments in relation

thereto, to the Collector of Maintenance at Canberra.

It is conceded by counsel for the appllcant that

there was no jurisdiction in the magistrate to make this order

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because under s.118 of the Superannuation Act 1 9 7 6 , a

garnlshee order could not be made against superannuation

moneys.

On 6 January 1 9 8 1 , the applicant made a statutory

declaration which annexed thereto a copy f the maintenance

order to which I have referred, and the Certificate of

Arrears and they were served on the Commissioner for Super-

annuation with a view to the arrears being recovered pursuant that earlier telephone communication was confirmed and that, and I quote:

to s . 1 1 9 of the Superannuation Act. By letter dated 27

"The judgment has to be for a sum certain in

order to satisfy the requirements of s.119 of

the Superannuation Act 1976 and;

the Certificate of Arrears issued by the

Collector of Maintenance cannot	be regarded
as a court judgment."

The letter in a separate paragraph then went	o to say, and
I quote:

"Therefore the balance of Mr Graham's refund

previously withheld will	be paid to him
shortly."

The reference to the refund previously withheld

was to the fact that part of the superannuation moneys to

which the former husband was entitled had already been paid to

him.

The application for an order for review filed on

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behalf of the applicant is not dated but the amended

application bears date 6 May of this year. As I have earlier indicated, the grounds relied upon, are some of those set out

in 5.5. The Commissioner has argued that there was not in

this case any decision within the meaning of the definition

in s.3(1) of the Administrative Decisions (Judicial Review)

Act. In my view it is reasonably clear that what the

Commissioner intimated in his letter to which I have referred,

was that in his view there was no power to apply 5.119 in the

circumstances of the case and that he would therefore take no

further action on the request made to him on behalf of the

applicant. He had, in effect, taken a decision, as he was

entitled to do, on a threshhold matter concerning the

application of the section and he had decided that question

against the applicant and intimated that as a result he would

take no further course except to pay the balance of Mr

Graham's money to him. This in my view was a decision within

the meaning of the sub-section and within the meaning of the

opening words of 5 . 5 of the Act.

It was further urged on behalf of the Commissioner

that the applicant had another avenue of redress which was

provided by the terms of the Superannuation Act and by recourse

thereafter, if necessary, to the Administrative Appeals

Tribunal.

In these circumstances and having in mind the

terms of s . l O ( 2 ) of the Act it was argued that this Court

should decline jurisdiction. I think this is always a matter

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the Court has to consider or should I say it is frequently

a matter the Court will have to consider. The main conslder-

ation, I imagine, is what is best to be done in the interests

of the parties and in the public interest and with a view to

saving cost and time and reaching as	soon as possible a finality
of decision.

The jurisdiction of this Court except in respect

of the matter to which I have already referred was not disputed.

What the applicant has done is sought to have the question of

law resolved by this Court and if resolved in her favour to have

the Commissioner exercise his discretion under s.119. If that

discretion were exercised unfavourably to her she could then

pursue further remedies under the Act o r those under the

Administrative Appeals Tribunal Act to which counsel has referred.

If the matter were not dealt with by this Court she

could seek reconsideration by the Commissioner and then go to

the Administrative Appeals Tribunal and if the question of law

was still decided adversely to her she might then have to come

back to a Full Bench of this Court. In the circumstance, it

seems plain enough to me that it is in the best interests of

everyone that this Court deal with the question of law. In

other words, that it accepts the jurisdiction granted to it.

I therefore proceed to consider the application of s .5 .

The core of the matter relates to the proper

construction of s.119 of the Superannuation Act 1976. It is

contended by counsel for the applicant that the amount of the

.

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a r r e a r s a s a t a past date having been determined and the necessary s ta tu tory dec lara t ion having been furn ished to

the Commissioner , the terms of sub-sect ion 1 have been

s a t i s f i e d . On behalf of the Commissioner, on the o the r hand ,

I t i s con tended tha t t he re was no judgment o r a l t e r n a t i v e l y

t h e r e was no judgment f o r t h e payment of a sum of money; t h a t

t h e a p p l i c a n t was no t pu t i n t h e p o s i t i o n o f a judgment

c r e d i t o r , n o r was the husband o r anyone e l s e i n t h e p o s i t i o n

o f a judgment debtor within the meaning of the sub-sect ion.

I t i s fu r the r u rged tha t t he l anguage o f t he sub - sec t ion ,

p a r t i c u l a r l y when it r e f e r s t o a judgmen t be ing fu l ly sa t i s f i ed

i s i n c o n s i s t e n t with any no t ion tha t a r r ea r s o f ma in tenance ,

e v e n a l t h o u g h c e r t i f i e d by the p rope r au tho r i ty , can be dea l t

w i th unde r t ha t s ec t ion . With these l as t -ment ioned submiss lons

I agree. I t seems t o me t h a t when one t akes t he sub - sec t ion a s

a whole, i t i s r e f e r r i n g t o a judgment i n t h e more accepted

sense of the word, where there i s a dec is ion by way of

~ u d g m e n t t h a t a f ixed and a sce r t a ined sum of money be paid s o

t h a t t h e r e i s a judgment c r e d i t o r a n d a judgment debtor and so

t h a t one can see whether	o r not	the	judgment	has	been	ful ly
s a t i s f i e d .

An order for main tenance , it has long been acknow-

ledged, i s i n a s p e c i a l p o s i t i o n . An o rde r f o r p e r l o d i c a l

payments,such as t h e p r e s e n t , c r e a t e s a n o b l i g a t i o n f o r t h e

payment of amounts i n t h e f u t u r e . The amount involved i s

inde f in i t e because the ob l iga t ion may be var ied a t any time

and in any even t w i l l t e rmmate wi th the dea th o f t he pe r son

l i a b l e t o make the payments. Even i f one were therefore to

.

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r ega rd the o rde r as a judgment - and i n my view t h i s would

be inco r rec t s o f a r a s t h e u s e o f t h a t t e r m i n s.119 is

concerned - there would not be a judgment for any ascer ta ined

o r a s c e r t a i n a b l e amount and it would no t be poss ib l e p rope r ly

to app ly t he t e rms o f t he sub - sec t ion . I t i s t h e r e f o r e my

o p i n i o n t h a t a c a s e d o e s n o t a r i s e f o r t h e a p p l i c a t i o n o f

s .119(1) . This accords with the view taken by t h e Commissioner

I think the whole chain of events has been a s o r r y

one and the Court cannot help but be sympathet ic with a

p e r s o n i n t h e p o s i t i o n o f Mrs Graham. I do not , however , know

a l l t h e f a c t s o f t ha t ca se , and shou ld no t go f u r t h e r i n

express ing a v iew about her pos i t ion .

For t he r easons I have g iven the no t i ce o f ob jec t ion

t o competency and the appl icat ion should both be dismissed. In

the c i rcumstances I th ink the re shou ld be no o rde r a s t o cos t s .

I do not think any o f you can ask for cos ts .

.